The
Department of Justice, Federal Bureau of Prisons, Federal Correctional
Institution, Morgantown, West Virginia, filed a request for assistance with the
Federal Service Impasses Panel (Panel) pursuant to the Federal Employees
Flexible and Compressed Work Schedules Act of 1982 (Act), 5 U.S.C. § 6120 et
seq., to resolve an impasse arising from its decision to terminate a 4-10
compressed work schedule (CWS) for employees in the Correctional Services
Department (CSD) who are represented by Local 2441, American Federation of
Government Employees, AFL-CIO (Union).

After
investigation of the request for assistance, the Panel determined that the
dispute should be resolved through an informal conference at the Employer's
facility in Morgantown, West Virginia, with Panel Member Richard B. Ainsworth.
The parties were advised that if no settlement were reached during the informal
conference, Member Ainsworth would report to the Panel on the status of the
dispute, including the parties' final positions and his recommendations for
resolving the impasse. After considering this information, the Panel would take
final action in accordance with 5 U.S.C. § 6131 and 5 C.F.R. § 2472.11 of its
regulations.

Pursuant
to the procedural determination, Member Ainsworth conducted an informal
conference with the parties on April 11, 2005. When the parties were unable to
resolve their dispute, with the permission of Member Ainsworth, they submitted
summary statements in support of their respective positions. The Panel has now
considered the entire record, including all of the parties' pre- and
post-conference submissions, and Member Ainsworth's recommendation for resolving
the dispute.

BACKGROUND

The
Employer's mission is to protect society by confining criminal offenders in the
controlled environments of prisons and community-based facilities that are safe,
humane, and appropriately secure. The Federal Correctional Institution (FCI) at
Morgantown is a minimum-security prison, which houses approximately 1,100 male
inmates; the Employer runs a UNICOR (Federal Prison Industries, Inc.) automated
data processing operation as well. The CSD provides inmate supervision within
the housing units, in the compound, and outside of the institution.1/
The Union represents about 170 employees, mainly correctional officers, at
grades GS-7 and -8. Other unit employees work as counselors, case managers, and
mechanical and food service employees, at grades GS-9 through -11, WG-5 through
-9, and WS (wage supervisor) -7 through -11. A master collective bargaining
agreement (MCBA) that expired on March 8, 2001, and a locally negotiated
Supplemental Agreement cover the parties; the provisions of the MCBA will remain
in effect until a successor agreement is implemented.

ISSUE AT IMPASSE

In
accordance with section 6131(c)(2)(B) of the Act, the issue in dispute is
whether the findings on which the Employer bases its determination to terminate
the 4-10 CWS in the CSD is supported by evidence that the schedule has caused an
adverse agency impact.2/

POSITIONS OF THE
PARTIES

1. The Employer's
Position

The
Panel should find that the 4-10 schedule in the CSD is causing an adverse agency
impact and order its termination. For comparison purposes, data are derived from
two time periods: March 30 through September 27, 2003, when correctional
officers were on a 5-8 schedule; and March 28 through September 25, 2004, when
correctional officers worked a 4-10 CWS (the evaluation period).3/
The comparison shows that the 4-10 CWS caused an adverse agency impact by
increasing the CSD's overall operating costs by "13 percent during the
evaluation period, which equates to $570,535 annually." In particular,
overtime in the CWS period increased by 78 percent or $74,483.48. A part of this
rise in overtime can be attributed to the 21 percent greater use of sick leave
during the evaluation period.4/
In addition, the CWS created an inefficient, daily 4-hour staffing overlap for
10 posts. The overlap amounts to losing 3,185 man-hours every 6 months. By
contrast, the 5-8 schedule caused only a 15-minute overlap or 455 lost man-hours
during the 6-month period used for purposes of comparison; "by reverting to
the 8 hour shift a gain of 199 man hours would be realized." Finally,
non-custody employees on the Alpha roster took 25 percent longer to complete
their normal assignments because they were assigned to cover vacant posts in the
CSD caused by the 4-10 CWS.

As to
the modifications that the Union suggests to free up three officers who
otherwise are assigned to the tool room, the Special Housing Unit (SHU), and
escort duties, none of these modifications are acceptable. BOP regulations
require that correctional officers oversee the tool room. During annual
refresher training, officers working the SHU complained that it was hard to get
all of the work done with only two shifts, let alone a single shift. Finally,
flexibility is needed with respect to escorted trips because it is uncertain
when doctors can see inmate patients. Despite the Union's contention that the
Employer has previously engaged in these practices, if true, such measures were
relied on only briefly.

2. The Union's
Position

The
Panel should find that the Employer has not met its burden under the Act of
demonstrating that the existing 4-10 CWS has caused an adverse agency impact. In
this regard, "if any adverse effect is at hand, it is of management's own
doing by not properly staffing this facility." In this regard, during the
CWS test, staffing fell by close to 6 percent. The increase in overtime is
directly related to the fact that there are more correctional posts than
available officers, as many as six more posts than officers that must be filled
every day. While the vacant posts could be filled, and previously have been
filled without an impact on overtime, instead of using the Alpha roster (made up
of non-custody staff) during their regular shifts, during the 4-10 CWS period
the Employer mainly filled them using overtime.5/ This occurred partly because
the Employer amended the Alpha roster to curtail relief assignments from the
roster after 4 p.m. and eliminated weekend relief. Previously, such assignments
occurred 7 days a week. In the same vein, correctional officers who normally had
been "assigned to S&A [sick and annual leave roster] at the beginning
of a new quarter are immediately pulled and assigned to an existing vacated
post," thereby creating the need to pay overtime to cover correctional
officers' sick and annual leave absences.6/ So long as this pattern continues,
whether employees work a 5-8 or a 4-10 schedule, overtime rates will be higher.7/

As to
sick leave and Family Friendly Leave Act use, the Employer's own
"comparison charts show that 156.5 hours [127.5 hours for sick leave only]
less in overtime was paid out for sick leave usage while the CWS was in
effect" than under the 5-8 schedule. Sick leave should not in any case be
viewed as a relevant factor since it represents a benefit that the Employer is
obligated to provide. On the overlap the Employer cites, the evening overlap
actually increases productivity because the 4 p.m. count can be accomplished
more quickly, and meals start on time. In turn, recreation and education
activities can start earlier, giving inmates more time in such activities. The
Employer also could "more effectively use the extra bodies" from 2 to
4 p.m. for monthly "shakedowns" and during 7 to 8 a.m. for added
security during breakfast. As to the $13,000 the Employer claims to have saved
during the annual refresher training, when, by agreement, employees revert to a
5-8 schedule, this year the Employer changed employees shifts and filled the day
watch with non-custody staff, which decreased productivity in the facility's
departments.

Finally,
the Employer rejected the three suggestions that the Union made for freeing up
correctional staff: (1) reducing the SHU from two shifts to one; (2)
transferring tool room responsibilities to the Mechanical Services Department;
and (3) limiting the number of days for escorted trips to 3. These suggestions
are not new ideas, but instead reflect steps that the Employer has previously
taken.

CONCLUSIONS

Under
section 6131(c)(2) of the Act, the Panel is required to take final action in
favor of the agency head's (or delegatee's) determination to terminate a CWS if
the finding on which the determination is based is supported by evidence that
the schedule has caused an "adverse agency impact." As its legislative
history makes clear, Panel determinations under the Act are concerned solely
with whether an employer has met its statutory burden on the basis of "the
totality of the evidence presented."8/

Upon
thorough examination of the evidence presented, we conclude that the Employer
has demonstrated that the 4-10 CWS in the CSD is causing an adverse agency
impact. While it is not clear that the marked increase in overtime costs the
Employer cites are directly and entirely attributable to the 4-10 CWS, the
impact of the 4-hour overlap on the CSD's efficiency is undeniable. Simply put,
the overlap period places more employees on duty than the Employer requires.
Thus, we find that the 4-10 CWS is causing an adverse agency impact by reducing
productivity and that a return to the 5-8 schedule will result in the more
efficient allocation of staff, an estimated gain by the Employer's calculations
of two 8-hour posts a day. Accordingly, we shall order that the 4-10 CWS be
terminated.

ORDER

Pursuant
to the authority vested in it by the Federal Employees Flexible and Compressed
Work Schedules Act, 5 U.S.C. § 6131(c), the Federal Service Impasses Panel
under § 2472.11(b) of its regulations hereby orders the termination of the 4-10
CWS program in the Correctional Services Department.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

April 21, 2005
Washington, D.C.

[1]/
Overall, there are 60 supervisory and non-supervisory positions in the CSD. The
number of “available” unit employees in the Department has declined since
January 2003 from a high of 47 to a low of about 40 to 43 during the 2004 test
of the 4-10 CWS.During 2004, 20 correctional officers were on a 4-10 CWS, and
23 worked 8-hour days.